Photographers have for years struggled with the question as to whether posting photographs on the web constitutes publication (check my old 2005 post on this issue). The answer is important so that photographers can accurately register their images by first separating them between published and unpublished. Fortunately, the court in Rogers v. The Better Business Bureau of Metropolitan Houston, Inc., No. H-10-3741 (Aug. 15, 2012), provided some helpful analysis and information.
The Copyright Act defines “publication” as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101. But the Copyright Act doesn’t give any guidance as to how this definition applies to works on the Internet. See Copyright Office, Circular 66: Copyright Registration for Online Works, p. 3 (2009) (stating that the definition of “publication” under copyright law does not specifically address online transmission”).
In the Rogers case, the defendant did what most do to defend against an infringement claim – it challenged the copyright registration because Rogers had registered his webpages as unpublished. The defendant claimed instead that the webpages were published so that registration was invalid. The Rogers court reviewed the available law on the matter, citing the following cases:
In Getaped.com, Inc. v. Cangemi, 188 F. Supp.2d 398, 402 (S.D.N.Y. 2002), the district judge found that a website, similar to photographs, music files, or software, was published when posted on the internet. The court stated:
By accessing a webpage, the user not only views the page but can also view–-and copy–-the code used to create it. In other words, merely by accessing a webpage, an Internet user acquires the ability to make a copy of that webpage, a copy that is, in fact, indistinguishable in every part from the original. Consequently, when a website goes live, the creator loses the ability to control either duplication or further distribution of his or her work.
Id. [Editor's comment: the Court noted that many have questioned this holding]
A 2006 opinion out of the same court stated that, assuming that the internet posting of a digital file of a show performance constituted distribution, it lacked the element of commercial exploitation required for publication. Einhorn v. Mergatroyd Prods., 426 F. Supp.2d 189, 197 (S.D.N.Y. 2006). In a more recent opinion, the same district court stated that posting images on a website was not publication. McLaren v. Chico’s FAS, Inc., No. 10 Civ. 2481(JSR), 2010 WL 4615772, at *1 (S.D.N.Y. Nov. 9, 2010)(unpublished). In 2009, another district court avoided the issue, finding it to be “unsettled” and unnecessary to that court’s ruling. Moberg v. 33T LLC, 666 F. Supp.2d 415, 422 (D. Del. 2009).
The Northern District of California made a passing remark in a case dealing with the jurisdictional effect of application for registration that reflects the view that making a website available to the public on the internet was publishing it. See Sleep Science Partners v. Lieberman, No. 09-04200 CW, 2010 WL 1881770, at *6 (N.D. Cal. May 10, 2010)(unpublished). The Southern District of Florida determined that the creator of a music file published the file when he posted it on the internet because it could be downloaded and copied by members of the public. See Kernal Records Oy v. Mosley,794 F. Supp.2d 1355, 1364 (S.D. Fla. 2011). Citing Getaped.com, Inc., the Eastern District of Arkansas found that photographs that were accessible online to others who could download them freely were published. William Wade Waller Co. v. Nexstar Broad., Inc., No. 4-10-CV-00764 GTE, 2011 WL 2648584, at *2 (E.D. Ark. July 6, 2011). Without discussion or explanation, another district court stated that the defendant “published a You-Tube video of a musical work.” Erickson v. Blake, 839 F. Supp.2d 1132, 1134 (D. Or. 2012).
Rogers, at 14-16.
The Rogers court summarized the issue by finding that whether the work was published depended on the facts, noting Thomas F. Cotter’s comment in his article, “Toward a Functional Definition of Publication in Copyright Law,” 92 Minn. L. Rev. 1724, 1768-70 (2008)(where he opined that whether an internet transmission is a publication depends on whether the facts indicate that the website users were authorized to make copies, i.e., whether a distribution occurred). With that definition, photographers likely can consider their images published on a website when they allow their photos to be downloaded/copied. So if your photos are on your webpage for display only, then they probably are not published.
In the end, the Rogers court relied on the facts that a timely registration gets the presumption as being valid. So it’s always best to register your photographs, even if you’re not sure whether they have been published!